Affirmative Action and the Supreme Court

In its upcoming October 2012 term, the Supreme Court will
consider the case of
Fisher v. University of Texas at Austin. At issue is
whether or not this public university violated the Equal Protection
Clause of the 14th Amendment by using race as a factor in deciding
undergraduate admissions. At The New Yorker, liberal legal
writer Jeffrey Toobin, a supporter of affirmative action and other
race-conscious government policies, has an interesting preview of
the case. What’s perhaps most notable is the fact that Toobin
thinks the Texas policy—and possibly even affirmative action
itself—may be in real jeopardy. He writes:

The Texas case only concerns admissions practices at public
universities, but based on past practices, the courts will likely
apply the resulting ruling at private schools as well. The case
will also not deal directly with affirmative action in the
workplace, but, again, the same standards will likely be applied in
that context. The great national experiment with affirmative action
began in the Johnson Administration, thrived in the Nixon years,
and has survived, embattled but enduring, ever since. We may now be
in its final chapter.

In a way, it would not be surprising if the Court sent
affirmative action to its doom. No figure in public life, including
President Obama, has made a full-throated defense of the practice
in years. On an aggressively conservative Court like the current
one, that relative silence could well be seen as an invitation to
dismantle the practice.